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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

DENNIS COKER, on behalf of himself and all others similarly situated, v. THE PURDUE PHARMA COMPANY, ET AL. Corrected Opinion. The first line of the first full paragraph is corrected to read "Plaintiff/Appellant."

This is a class action involving federal preemption. The defendants own a series of patents for the prescription pain medication OxyContin. In prior separate litigation between the defendants and a generic drug manufacturer, a federal district court in New York found that the defendants committed inequitable conduct before the United States Patent Office in procuring the patents. After this order was entered by the federal court in New York, the plaintiff filed the instant class action in Shelby County, Tennessee, on behalf of all consumers of OxyContin, alleging violations of the Tennessee Trade Practices Act, the Tennessee Consumer Protection Act, and common law monopolization. These state law claims were based on the defendants'
conduct before the United States Patent Office. The defendants removed the case to the federal district court for the Western District of Tennessee. The district court remanded the case back to the Tennessee trial court, holding that the finding of inequitable conduct against the defendants by the federal court in New York operated as collateral estoppel on the issue regarding the
federal patent laws. On remand, the defendants filed a motion for judgment on the pleadings based on federal preemption. The trial court granted the motion. We affirm, finding that the plaintiff's antitrust and unfair competition claims, based on the defendants' conduct before the Patent Office, are preempted by the federal patent laws.

An action to have an easement established across defendants' property resulted in the Trial Court finding an express easement and also by prescription across defendants' property. We hold plaintiffs established an easement by prescription.

The defendant, William Clay Bohanan, Jr., was convicted by a Davidson County jury of two counts of first degree felony murder and one count of aggravated arson. The trial court sentenced the defendant to concurrent life sentences for each felony murder conviction and imposed a consecutive
20-year sentence for the aggravated arson conviction. On appeal, the defendant complains that the evidence is insufficient to support his convictions and that the trial court erred in admitting testimony of domestic violence between the defendant and a woman with whom the defendant was involved. After thoroughly reviewing the record and the applicable authorities, we hold that no error exists and affirm the defendant's convictions.

Claudia S. Jack, District Public Defender, and Robin Farber, Assistant Public Defender, for the appellee, Wanda Booker.

Judge: WILLIAMS

The State appeals the trial court's suppression of the evidence seized from the defendant's home pursuant to a search warrant. We conclude that the deficiencies in the confidential informant's basis of knowledge and proof of veracity were cured by independent police corroboration. We reverse the trial court's suppression of evidence and remand for trial.

The appellant, Toney L. Conn, was convicted of possession with intent to sell or deliver twenty-six grams or more of a schedule II controlled substance (cocaine), felony possession of a handgun, possession of drug paraphernalia, and possession of a controlled substance (marijuana). Pursuant
to the grant of a delayed appeal by the post-conviction court, the appellant seeks a new trial in connection with his convictions. On appeal, he presents three issues for review: (1) whether the trial court erred in denying his motion to suppress; (2) whether the trial court erred in hearing the motion to suppress after the trial had begun; and (3) whether the evidence at trial was sufficient to support his convictions. Following our review of the parties' briefs and the applicable law, we affirm the udgments of the trial court.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William E. Gibson, District Attorney General; and Owen Burnett, Assistant District Attorney General, for the appellant, State of Tennessee.

Judge: WELLES

A Pickett County jury convicted the Petitioner, Robby Lynn Davidson, of two counts of second1 degree murder. The trial judge imposed two twenty-five year sentences to be served consecutively in the Department of Correction. On direct appeal, the Petitioner challenged both his convictions and his sentences, and this Court affirmed both. The Petitioner now requests post-conviction relief,
alleging that he received the ineffective assistance of trial counsel and that the State committed prosecutorial misconduct. We conclude that the Petitioner is not entitled to relief based on ineffective assistance of counsel and that the Petitioner's claims of prosecutorial misconduct have been waived by failure to present them on direct appeal. Therefore, we affirm the judgment of the trial court.

The defendant, Billy L. Hall, was convicted of driving under the influence and possessing a handgun while under the influence of alcohol. On appeal, he challenges the sufficiency of the convicting evidence. Upon our review of the record and the parties' briefs, we affirm the judgments of the trial court.

This matter is before the Court upon the State's motion to affirm the judgment of the habeas court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The Petitioner has appealed the habeas court's order dismissing the petition for writ of habeas corpus. Upon a review of the record in this case, we are persuaded that the habeas court was correct in dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the habeas corpus court is affirmed.

Roger E. Nell, District Public Defender, for the appellant, Audra Lynn Johnson.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; John Carney, District Attorney General; and C. Daniel Brollier, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: DANIEL

The Appellant, Audra Lynn Johnson, entered a best interest plea and reserved for appeal a certified question of law: whether the trial court possessed territorial jurisdiction to try the out-of-state defendant. We conclude that the trial court lacked territorial jurisdiction.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; James Michael Taylor, District Attorney General; and Steve Blount, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

A Franklin County Circuit Court jury convicted the appellant, Mary Ann McNeilly, of driving under the influence (DUI), a Class A misdemeanor. The trial court sentenced her to eleven months and twenty-nine days, to be suspended after serving ten days in confinement; imposed a three hundred fifty dollar fine; ordered that she perform one hundred hours of public service; and suspended her driver's license for one year. On appeal, the appellant claims (1) that the trial court should have
suppressed her statement to a police officer; (2) that the trial court improperly allowed the State to replay a videotape of the appellant’s stop for the jury; (3) that the trial court improperly admitted the appellant's blood test results into evidence because the State failed to establish a proper chain of custody; (4) that the trial court erred by refusing to allow defense witnesses to testify about the
appellant’s character; (5) that the evidence is insufficient to support the conviction; (6) that her sentence is excessive; and (7) that these cumulative errors denied the appellant her right to a fair trial. Upon review of the record and the parties' briefs, we affirm the appellant’s conviction but modify her sentence to reflect that she is to serve five days in confinement and remand the case for entry of
an amended judgment.

The petitioner, Maurice Pruitt, was convicted of the sale of one-half gram or more of cocaine, a Class B felony, and was sentenced to 18 years in prison. He filed a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. The trial court dismissed
his petition. We affirm the judgment of the trial court.

The petitioner, William B. Robinson, appeals the post-conviction court's denial of post-conviction
relief. On appeal, he argues that (1) the trial court's giving an instruction on first-degree murder was plain error, and (2) the post-conviction court erred in denying post-conviction relief because he received the ineffective assistance of counsel. Upon our review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Dwight Morton Spence, pled guilty in the Marshall County Circuit Court to two counts of manufacturing a Schedule VI controlled substance and two counts of possession of drug paraphernalia and received an effective five-year sentence. On appeal, he claims that the trial court should have ordered him to serve his sentences on community corrections. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

This matter is before the Court upon the State's motion to affirm the judgment of the habeas court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The Petitioner has appealed the habeas court's order dismissing the petition for writ of habeas corpus. Upon a review of the record in this case, we are persuaded that the habeas court was correct in dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the habeas corpus court is affirmed.

Paul G. Summers, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; John Carney, District Attorney General, and Arthur Bivens, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

The petitioner pled guilty to three counts of selling cocaine over .5 grams within 1000 feet of a school. He was also convicted in a jury trial of a fourth count for the same offense. The trial court sentenced the petitioner to fifteen years for each conviction to run concurrently. The petitioner was unsuccessful on his direct appeal and appeal of a certified question. The petitioner timely filed a
petition for post-conviction relief arguing that his rights of equal protection were violated. The post-conviction court denied the petition. We affirm the judgment of the post-conviction court.

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner, Alonzo Williams, has appealed the trial court's order summarily dismissing his petition for the writ of habeas corpus. In that petition, the petitioner sought a writ of habeas corpus to release him from
his sentence. We are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

This matter is before the Court upon the State's motion to affirm the judgment of the habeas court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The Petitioner has appealed the habeas court's order dismissing the petition for writ of habeas corpus. Upon a review of the record in this case, we are persuaded that the habeas court was correct in dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the habeas corpus court is affirmed.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; John Carney, District Attorney General; and Arthur Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

This matter is before the Court upon the Defendant's appeal from an order of the trial court denying the Defendant's motion to withdraw his guilty plea. The State argues that the appeal should be dismissed because the Defendant, Walter Edward Young, did not timely file his notice of appeal. We agree that the notice of appeal was not timely filed. We also conclude that the interest of justice
does not require that the timely filing of the notice of appeal be waived. Accordingly, this appeal is dismissed.

Former U.S. Deputy Attorney General Larry Thompson, who helped write the government's policy to crack down on corporate lawbreaking, said that prosecutors appear to have overreached when targeting some businesses. In a speech last week, he defended the overall goal of the law but suggested that prosecutors may be too aggressive in pressuring businesses to cooperate with the government. The department currently is debating whether to roll back some of the harsher guidelines developed after the law's enactment, according to the Associated Press.

Clarksville's first full-time attorney, David Haines, announced his resignation this week effective Jan. 1. Haines said he was resigning to take the position of general counsel with the state Administrative Office of the Courts.

A U.S. Supreme Court case involving the racial composition of schools is causing educators and policy-makers to look at the Davidson County school district to see how colorblind enrollment affects education. Because of the work of a Vanderbilt professor, they will have solid social science research to evaluate. The Tennessean reports that the Vanderbilt data was submitted to the high court in briefs this week.

Among Tennessee's 10 most populated cities, Jackson is the only one that does not have an in-house attorney. An article in the Jackson Sun explores whether this decision has hurt the city's bottom line or not.

The Tennessee Bureau of Investigation is probing an allegation that Claiborne County Sheriff David Ray engaged in "inappropriate sexual contact" with a 17-year-old girl. The investigation was launched at the request of C. Berkeley Bell, district attorney general for the 3rd Judicial District.

The Knoxville Bar Association's Annual Membership Meeting will be Dec. 8 at 8:30 a.m. at the Main Assembly Room of the City County Building. The
president-elect, treasurer, secretary and four positions on the Board of Governors will be decided.

A luncheon will be held in honor of Blount County Circuit Court Judge D. Kelly Thomas' recent appointment to the Tennessee Court of Criminal Appeals, Eastern Division, reports Blount Today. The event, which will feature Tennessee Supreme Court Justice Gary Wade as guest speaker, will be held at noon on Dec. 8 at Sullivan's Downtown in Maryville. For information, call Joe Gallagher at 983-4557.

Retired Justice Anderson to speak at dinner

Former Tennessee Supreme Court Chief Justice Riley Anderson will be the guest speaker at a Dec. 12 holiday dinner sponsored by the Oak Ridge League of Women voters. The 7 p.m. dinner, which is open to the public, will be held at the Oak Ridge Unitarian Universalist Church. For more information, contact Janis Williams at (865) 483-1219 or Mary Uziel at (865) 483-1043. Tickets are $25 and reservations must be made by Dec. 6, reports the Oak Ridger.

BPR Actions

Dresden attorney suspended

On Nov. 30, the Supreme Court issued an order summarily suspending Harry Max Speight from the practice of law after finding that he had misappropriated funds to his own use.